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Court of Criminal Appeal 11 November 2002

Regina v JAQUES

[2002] NSWCCA 444

Public order & justice offences
SENTENCE APPEAL UNDUE WEIGHT TO PREVIOUS RECORD CIRCUMSTANCES OF OFFENCE NOT SEVERE.

Citation: Regina v JAQUES [2002] NSWCCA 444
Court: NSW Court of Criminal Appeal
Date: 11 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant was convicted by a jury of threatening reprisal against a judicial officer under s 326(1)(b) of the Crimes Act 1900. The threat arose from a visit to the court office at Tumut, where the applicant said of the Local Court magistrate who had committed him for trial on a malicious wounding charge: "If I go to gaol for this, then when I get out I'm going to kill him."

The applicant was 28 years old at the time of sentencing, lived with a partner, and had three children (with a fourth expected). His criminal history included assault, malicious damage, serious driving offences, and prior terms of imprisonment and periodic detention.

At first instance, the District Court sentenced him to two years' imprisonment with a non-parole period of one year. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentencing judge placed undue weight on the applicant's criminal history and his plea of not guilty when determining the sentence
  • Whether the sentencing judge erred in characterising the severity of the offence, given the circumstances in which the threat was uttered
  • Whether the sentencing judge was required to expressly consider and rule out non-custodial alternatives before imposing a full-time custodial sentence

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by giving too much weight to the circumstances of the utterance and to the applicant's prior record as evidence of his general attitude. The sentencing judge's remarks went beyond the particular offence and reflected an approach to general punishment that was broader than the specific conduct warranted.

The Court noted that the offence was not committed in the face of the court, was uttered in an office in the presence of others, and appeared to have been said in anger. A jury's verdict that the words constituted a real threat does not, of itself, amount to a finding that the applicant intended to carry out that threat. These circumstances placed the offending towards the lower end of the scale of seriousness for this type of offence.

On the second ground, the Court found it unnecessary to reach a definitive conclusion, but noted in passing that sentencing judges are not required to methodically itemise and reject every alternative sentencing option. The District Court had clearly understood its obligation under s 5 of the Crimes (Sentencing Procedure) Act 1999 to consider alternatives, and there was no error established on that basis alone.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence varied to 12 months' periodic detention, commencing from the applicant's acceptance into an available place within seven days of the date of judgment

Key Takeaways

  • A jury's finding that words constituted a genuine threat under s 326(1)(b) of the Crimes Act 1900 does not carry with it a finding that the offender intended to carry out the threat; these are distinct considerations in sentencing.
  • Sentencing courts must take care not to give disproportionate weight to a prior criminal record as a proxy for general attitude when the circumstances of the specific offence are relatively less serious.
  • The Court of Criminal Appeal confirmed that the circumstances of a threat (including whether it was made in court, directed at the officer personally, or expressed with clear intent) are relevant to where the offending falls on the scale of seriousness.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, sentencing courts are required to turn their minds to alternative penalties, but are not obliged to engage in an exhaustive, step-by-step written rejection of each option.
  • Statistical data from the Judicial Commission, even where based on a small sample, may be taken into account by an appellate court in assessing whether a sentence was manifestly excessive, though its weight will be limited by the sample size.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 326(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12A

Cases:
- Dinsdale v R (2000) 175 ALR 315
- Regina v Blackman [2001] NSWCCA 121